R (on the application of Forest Heath District Council and others) v Electoral Commission, Boundary Committee for England

Local government reorganisation – Boundary committee – Pre-consultation – Proposal for single-tier unitary authority – Secretary of state asking defendant to advise on alternative proposal to be assessed against five criteria – Defendant failing to consult claimant councils before publishing draft proposals for reorganisation – Whether defendant unfairly excluding claimants’ proposal – Whether court having power to interfere with pre-consultation process – Whether defendant failing to fulfil pre-consultation obligations – Claim allowedThe claimants were local authorities in Suffolk; the defendant was the statutory committee responsible for reviewing local government structure. In 2006, the secretary of state invited local authorities to submit proposals for unitary local government, which were to be assessed against five criteria in anticipation of the enactment of the Local Government and Public Involvement in Health Act 2007. Part I of the Act concerned the replacement of existing two-tier district and county council structures with a single-tier of unitary authorities.In 2008, the secretary of state asked the defendant to advise on the future of local government in Suffolk. By March 2008, four concepts had been identified by the local authorities. The claimants proposed an east/west/Ipswich split at the pre-consultation stage, before the publication of draft proposals. The defendant subsequently published a single draft proposal in July and, following representations, published further draft proposals (FDPs) in March 2009, which were, subject to one matter, the same as those previously submitted.The claimants applied for judicial review of the decision to publish the FDPs. They argued that the east/west/Ipswich concept had been unfairly excluded from publication as a possible recommendation by the defendant to the secretary of state because: (i) the defendant had initially been working on the erroneous basis that only one proposal could be published; (ii) it had neither engaged in a fair and proper dialogue nor discussed its reservations about the concept; and (iii) when it regarded itself as being free from the “one proposal” constraint, following R (on the application of East Devon District Council) v Boundary Committee for England [2009] EWHC 4 (Admin); [2009] 02 EG 81 (CS), the defendant had failed properly and fairly to evaluate the concept and engage in dialogue.Issues arose, inter alia, as to whether: (i) the court was entitled to interfere with the pre-consultation process; and (ii) the defendant had fulfilled its obligation to consult. Held: The claim was allowed.It was open to the court, applying the general principles of fairness in the public law context, to interfere in the preliminary processes leading to a formal public consultation exercise to ensure that all relevant matters were taken into account: R (on the application of Medway Council and another) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin); [2003] JPL 583; [2002] 49 EG 123 (CS) considered.The object of evaluating proposed concepts was to determine whether a proposal would meet the secretary of state’s five criteria and whether it should be published for consultation. The guidance issued by the secretary of state required the defendant to carry out an information-gathering exercise and to engage in a dialogue with local authorities that might be affected by its recommendations. Although there might be an overlap, a dialogue connoted a bilateral exchange of thoughts or ideas, not merely the provision of factual information. Where a proposal was advanced by a local authority, whether in summary form or at a more advanced stage of presentation, that proposal needed to be discussed in order to decide, in a situation where it was in doubt, whether a particular criterion would be met. The parties had to engage with the issues. In the instant case, the defendant should, before publishing the draft proposals, have informed the claimants of any reservations it had as to whether the concepts advanced met the criteria. The claimants had the right to have their proposals fully and properly considered and evaluated at the pre-consultation stage. That included, as a matter of straightforward fairness or simple good administration, inviting assistance through dialogue on areas where doubts existed as to whether they met any or all of the five criteria. Accordingly, the claimants were entitled to the relief sought: R (on the application of Breckland District Council) v Boundary Committee [2009] EWCA Civ 239; [2009] PLSCS 108 considered.James Findlay QC and Sophie Weller (instructed by the legal department of Forest Heath District Council) appeared for the claimants; Richard Gordon QC and Andrew Henshaw (instructed by the Treasury Solicitor) appeared for the defendant; Timothy Buley (instructed by the Treasury Solicitor) appeared for the interested party. Eileen O’Grady, barrister